Kroger Grocery & Baking Co. v. Reddin

• Decision Date: 24 June 1942
• Docket Number: No. 12199,12200.,12199
• Citation: 128 F.2d 787
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: KROGER GROCERY & BAKING CO. v. REDDIN (two cases).

128 F.2d 787 (1942)

KROGER GROCERY & BAKING CO. v. REDDIN (two cases).

Nos. 12199, 12200.

Circuit Court of Appeals, Eighth Circuit.

June 24, 1942.

Wayne Ely, of St. Louis, Mo., for appellant.

Milton Keiner, of St. Louis, Mo., for appellee.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

These actions were brought in Missouri by the appellee, a Missouri administratrix, to recover damages, under a statute of Illinois, for wrongful deaths. The actions were tried together before a jury, which returned a verdict in each case for the plaintiff. From the judgments entered, the defendant has appealed, challenging (1) the capacity of the plaintiff to sue, (2) the ruling of the trial court that a release executed by Lorine Reddin was not a bar to the actions, and (3) the sufficiency of the evidence to sustain the verdicts.

Clarence Reddin was the husband of Lorine Reddin, and Mary Elizabeth Reddin was their daughter. As the result of injuries caused by a collision between the automobile in which the Reddin family were riding and a tractor or truck with a semi-trailer attached belonging to the defendant, which collision occurred on a public highway in Illinois on September 2, 1939, Clarence Reddin and Mary Elizabeth Reddin died.

Lorine Reddin was, on March 16, 1940, appointed by the Probate Court of the City of St. Louis, Missouri, administratrix of the estates of her deceased husband and daughter. Plaintiff commenced these actions in the Circuit Court of the City of St. Louis, asserting that the deaths of her husband and daughter were due to the negligent operation of the defendant's motor vehicle, and that, by virtue of the wrongful death statute of Illinois (Cahill & Moore's 1935 Revised Statutes of Illinois, Chap. 70, §§ 1, 2, Ill.Rev.Stat.1941, c. 70, §§ 1, 2), she was entitled to damages "for the exclusive benefit of the widow and next of kin of such deceased persons," as provided by that statute. The cases were removed to the court below by defendant because of diversity of citizenship.

The defendant first moved to dismiss on the ground that plaintiff was without legal capacity to sue. The motion was denied. The defendant then answered, denying negligence, denying that the causes of action asserted had accrued to plaintiff, and asserting that Clarence Reddin, who was the driver of the Reddin automobile, was guilty of contributory negligence, and that Lorine Reddin, both in her individual capacity and as representative, had on September 12, 1939, released the defendant from all liability on account of the deaths of the husband and daughter. On the trial of the cases, at the close of the evidence the defendant moved for directed verdicts on the grounds, (1) that plaintiff was without capacity to sue, (2) that the causes of action had been settled and released, and (3) that the evidence failed to show negligence on the part of the defendant. The court refused to direct verdicts, and, after the jury had returned verdicts for the plaintiff, the defendant moved for judgments notwithstanding the verdicts or for new trials. The court denied these motions, and these appeals followed.

1. The first contention of the defendant is that, under the law of Missouri, a Missouri administratrix may not maintain an action in the courts of Missouri based upon the wrongful death statute of another state. If the defendant has the confidence in this contention which it professes, it seems strange that it removed these actions from a state court — which court would, if defendant is right, be bound to dismiss the actions — to a federal court which had already definitely ruled that, under Missouri law, actions under the Illinois wrongful death statute can be maintained in Missouri by an administratrix appointed in Missouri. See Richter v. East St. Louis & S. Ry. Co., D.C.Mo., 20 F.2d 220. From the standpoint of justice, morals and common sense, there is no reason why a transitory cause of action, whether recognized by common law or created by statute, should not be enforceable in accordance with the substantive law of the state where the cause of action arose, in any court in this country which has jurisdiction of the subject matter and can obtain jurisdiction of the parties. This was recognized by the Supreme Court of the United States in Dennick v. Railroad Company, 103 U.S. 11, 26 L.Ed. 439, in 1880, at a time when wrongful death statutes were a novelty and state lines had greater significance than they have today. That court ruled that a New York administratrix could sue in the courts of New York under a wrongful death statute of New Jersey similar to the statute of Illinois upon which the plaintiff in these actions relies. The court said (page 18 of 103 U.S.): "Wherever, by either the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties."

The Illinois wrongful death statute imposes upon a person who negligently causes the death of another in that state an obligation to respond in damages to "the personal representatives of such deceased person," and provides that an action to enforce the obligation shall be brought by and in the name of the personal representatives, and that any damages recovered shall be for the exclusive benefit of the widow and next of kin of the deceased. It is obvious that there is nothing in the law of Illinois which limits the right to enforce the obligation created to a personal representative appointed in Illinois, or requires that the obligation be enforced only in the courts of Illinois. It seems clear that, unless the laws of Missouri forbid the enforcement of a cause of action for wrongful death arising under the laws of another state, by an administratrix appointed in Missouri, the plaintiff has the capacity to maintain these actions.

The exact question with which we are confronted was considered by the late Judge Charles B. Faris while a United States District Judge for the Eastern District of Missouri, in 1927. No one can question his qualifications to rule upon a question of Missouri law. He was a distinguished lawyer and jurist of that State and had served as a member of its highest court. In Richter v. East St. Louis & S. Ry. Co., supra, 20 F.2d 220, he ruled that a Missouri administratrix had capacity to maintain an action for wrongful death based upon the Illinois statute in suit. Judge Davis, who presided at the trial of the cases at bar and who is equally well versed in the laws of Missouri, has followed the ruling of Judge Faris in the Richter case. We shall avoid undue repetition of what is said in the opinion in that case. Strangely enough, the Supreme Court of Missouri has not as yet put the exact question completely at rest, but, contrary to defendant's contention, there is no ruling of that court in any case which demonstrates that the plaintiff lacks capacity to sue. Prior to 1905, because of a statute of Missouri, a personal representative of a decedent was without authority to maintain an action in that State "on the case for injuries * * * to the person of the testator or intestate of any executor or administrator." § 97, R.S. Missouri 1879; Vawter v. Missouri Pac. Ry. Co., 84 Mo. 679, 54 Am.Rep. 105; Oates v. Union Pac. Ry. Co., 104 Mo. 514, 16 S.W. 487, 24 Am.St.Rep. 348; McGinnis v. Missouri Car & Foundry Co., 174 Mo. 225, 73 S.W. 586, 97 Am.St.Rep. 553. The statutory limitation on the right of a local administrator to sue for the wrongful death of his intestate was eliminated by the Missouri legislature in 1905. Laws of Missouri 1905, p. 95, Mo.R.S.A. § 857; see §§ 3652, 3653 and 3654, R.S.Missouri 1939, Mo.R.S.A. §§ 3652-3654. A foreign administrator may maintain in Missouri an action for wrongful death based upon the laws of another state. Sec. 857, R.S. Missouri 1939; Byram v. East St. Louis Ry. Co., Mo.App., 39 S.W.2d 376. Missouri has a wrongful death statute (§§ 3652, 3653 and 3654, R.S.Missouri 1939), which differs from the Illinois statute only with respect to the persons upon whom the right of action is conferred and by whom it may be enforced. Under the Missouri statute, the personal representative of the decedent has only a limited and contingent right to bring such an action. See Richter v. East St. Louis & S. Ry. Co., supra (page 221 of 20 F.2d). Under these circumstances, we think it cannot be said that there is any public policy of Missouri which precludes a local administratrix from enforcing in the courts of Missouri a right to recover damages for wrongful death conferred upon her by the laws of another state. See Guerney v. Moore, 131 Mo. 650, 32 S.W. 1132, 1138, 1139; Burg v. Knox, 334 Mo. 329, 67 S.W.2d 96, 100; Mosby v. Manhattan Oil Co., 8 Cir., 52 F.2d 364, 77 A.L.R. 1099; Northern Pac. R. Co. v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L.Ed. 958.

In Husted v. Missouri Pac. Ry. Co., 143 Mo.App. 623, 128 S.W. 282, decided in 1910 by the Kansas City Court of Appeals, it was ruled that a Missouri administrator could maintain in the courts of Missouri an action under the wrongful death statute of another state. That court said (pages 283, 284 of 128 S.W.): "Actions of the nature of the present one are transitory. In case of death occasioned by negligence committed in another state, there was difficulty at one time in enforcing them in the courts of this state by reason of no one being authorized to maintain the suit. Vawter v. Missouri Pac. Railway Co., 84 Mo. 679, 54 Am.Rep. 105. This was afterwards remedied by the Legislature. Sections 547, 548, Rev.St.1899; Laws 1905, p. 95 (Ann.St.1906, p. 586 Mo.R.S.A. § 857)."

This probably would have been accepted as the law of Missouri had it not been for certain language used by the Supreme Court of Missouri in Schueren v. St. Louis & N. E. Ry. Co., 192 S.W. 965,...